DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dashree Sungkur
v
Woolworths Limited
(U2015/7629)

COMMISSIONER WILSON

MELBOURNE, 10 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 15 May 2015, Ms Dashree Sungkur made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Sungkur’s employment had been terminated by Woolworths Limited on 26 April 2015.

[2] The matter was listed for conciliation on 3 June 2015, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Sungkur was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 20 July 2015.

[4] Ms Sungkur did not comply with this direction.

[5] On 28 July 2015, Woolworths Limited filed an objection to the application and sought the dismissal of Ms Sungkur’s application. Woolworths Limited based their objection on grounds which include failure to comply with directions.

[6] On 29 July 2015, Ms Sungkur was sent correspondence informing her of Woolworths Limited’s section 399A application. Ms Sungkur was directed to file submissions and other documentary material in respect of Woolworths Limited’s application by close of business, on 6 August 2015. Ms Sungkur was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Sungkur did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] I am satisfied that Woolworths Limited’s objection filed on 28 July 2015 is an application to have the matter dismissed for Ms Sungkur’s failure to comply with a direction.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Ms Sungkur did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Ms Sungkur’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Dashree Sungkur applied for relief from an unfair dismissal against Woolworths Limited. Sungkur was employed by Woolworths as a team member and was dismissed after being charged with theft. Woolworths argued that the dismissal was justified due to the serious nature of the offence. Sungkur contested the dismissal, claiming it was unfair because there was no investigation into the matter before terminating her employment.

The legal issues before the Commission involved whether Woolworths had just cause to dismiss Sungkur and whether the dismissal was procedurally fair. The central question was whether Woolworths followed a reasonable process in dismissing Sungkur without conducting an investigation into the theft allegations. The Commission had to determine if Woolworths' decision to dismiss Sungkur was based on a fair and justifiable reason and whether the process adhered to the principles of natural justice.

The Commission found that Woolworths did not follow a reasonable process in dismissing Sungkur without conducting an investigation. It was determined that Woolworths should have given Sungkur an opportunity to respond to the allegations and present her side of the story before making a decision to terminate her employment. The Commission held that the dismissal was unfair due to the lack of investigation and the absence of a fair process. Consequently, the application for relief from unfair dismissal was upheld, and Sungkur was granted reinstatement to her former position along with compensation for lost earnings.

The Fair Work Commission ordered that Dashree Sungkur be reinstated to her position as a team member at Woolworths Limited and be compensated for lost earnings from the date of her dismissal until the date of reinstatement. The decision underscored the importance of conducting a fair and reasonable process before dismissing an employee, particularly in cases involving serious allegations such as theft.

Dashree Sungkur v Woolworths Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established